Amendment No. 1 to Agreement and Plan of Merger dated as of August 31, 2007 (this “Amendment”) among:
Exhibit 2.1
Amendment No. 1 to Agreement and Plan of Merger dated as of August 31, 2007 (this
“Amendment”) among:
(i) H&E Equipment Services, Inc., a Delaware corporation (“H&E”);
(ii) HE-JWB Acquisition, Inc., a Virginia corporation and wholly-owned subsidiary of
H&E (“HE-JWB”);
(iii) X.X. Xxxxxxx, Incorporated, a Virginia corporation (“Xxxxxxx”);
(iv) the shareholders of Xxxxxxx identified as such on the signature page to this
Agreement (“Xxxxxxx Shareholders”); and
(v) Xxxxxxx X. Xxxxxx, in his capacity as “Xxxxxxx Shareholders
Representative”.
Each of H&E, HE-JWB, Xxxxxxx and Xxxxxxx Shareholders Representative each of Xxxxxxx
Shareholders is herein each referred to as a “Party”, and together referred to as the
“Parties”. Any reference herein to Xxxxxxx shall mean and include also its Predecessors.
Recitals
A. The Parties are party to the Agreement and Plan of Merger dated as of May 15, 2007 (the
“Agreement and Plan of Merger”). Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Agreement and Plan of Merger.
B. The Parties desire that the Agreement and Plan of Merger be amended as provided herein.
Agreement
Now, therefore, in consideration of the mutual covenants contained herein, and intending to be
legally bound hereby, the Parties agree as follows.
1. Amendment of Recitals. Recital B of the Member Agreement is hereby amended and
restated as follows:
* * *
B. The Parties desire that, as of the Effective Time, HE-JWB will be merged with and
into Xxxxxxx, with Xxxxxxx as the surviving corporation as provided in Article III
(the “Merger”), and all of the outstanding Xxxxxxx Equity Equivalents will be
converted into the right to receive the Closing Net Proceeds to Xxxxxxx Shareholders and the
Supplemental Proceeds to Xxxxxxx Shareholders in the manner set forth herein. As a result of
the Merger, Xxxxxxx will become a wholly-owned direct subsidiary of H&E and 100% of the
Xxxxxxx Equity Equivalents will be owned by H&E; the foregoing, together with
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the other transactions contemplated by this Agreement and the other Transaction Documents,
being herein together referred to individually and collectively as the
“Transaction”.
* * *
2. Amendment of Definitions.
(a) The following definitions contained in Section 2.1 of the Agreement and Plan of Merger are
hereby amended and restated as follows:
* * *
“Hitachi Adjusted EBITDA” means the earnings derived solely
from operations related to the sale and leasing of the
inventory of vehicles and equipment of Xxxxxxx manufactured
by Hitachi owned by Xxxxxxx for the 12-month period ending as
of June 30, 2007, before any expense or charge in respect of
interest, Taxes based on income (but Taxes not based on
income of Xxxxxxx shall be included in the calculation of the
Hitachi Adjusted EBITDA), depreciation and amortization,
determined in a manner consistent with the 2006 Audited
Financial Statements. In determining Hitachi Adjusted EBITDA
and non-Hitachi Adjusted EBITDA, all costs, expenses and
deductions of Xxxxxxx which are not clearly related to or
identified with earnings derived from the sale and leasing of
vehicles and equipment manufactured by Hitachi or non-Hitachi
vendors shall be allocated with respect to earnings derived
from Hitachi and non-Hitachi vendors pro rata based on the
sales and revenue derived from such sales and leasing.
“Hitachi Fleet Premium” means $4.0 million, which represents
the agreed net present value of the revenues of Xxxxxxx
projected to be derived by Xxxxxxx from the sale and rental
of the Hitachi Fleet (excluding any New Hitachi Fleet) during
the three-year period ending June 30, 2010.
“Hitachi Fleet Value” means the net book value (including
after depreciation and obsolescence reserves) as of the
Closing Date of the Hitachi Fleet (excluding any New Hitachi
Fleet, except as provided in Section 2.3(e)) determined in a
manner consistent with the 2006 Audited Financial Statements.
Solely for purposes of example, the Hitachi Fleet Value
(excluding the New Hitachi Fleet) is currently assumed
(subject to confirmation by the Parties in accordance with
this Agreement) to be $22,035,388 as of the Closing Date,
subject to adjustment in accordance with Section 2.3.
“Hitachi Indebtedness and Payables” means (i) the
Indebtedness, payables and other obligations of Xxxxxxx owed
to the Hitachi Group as of the Closing Date (whether pursuant
to floor plan financings, on open account or otherwise),
including under or pursuant to the Hitachi Agreements, and
(ii) the amount of any other Indebtedness outstanding as of
the Closing Date which was incurred by Xxxxxxx on or after
June 30, 2007 and prior to the Closing where the proceeds of
such Indebtedness was used to purchase parts, accessories,
vehicles and equipment from the Hitachi Group.
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Solely for purposes of example, the Hitachi Indebtedness and Payables is assumed to be
$27,496,952 as of the Closing Date, subject to adjustment in accordance with Section
2.3.
“Included Xxxxxxx Indebtedness” means:
(i) Xxxxxxx Indebtedness (excluding Hitachi Indebtedness and Payables) outstanding as
of June 30, 2007, net of cash as of such date, plus
(ii) the Hitachi Indebtedness and Payables outstanding as of the Closing Date.
The Parties have no reason currently to believe that Schedule E-1 does not set forth
all of the Included Xxxxxxx Indebtedness as of June 30, 2007 (as if the Closing had occurred
on such date); and the inclusion or exclusion of any items on Schedule E-1 shall not
be determinative of whether such items are classifiable as Included Xxxxxxx Indebtedness.
Disclosure Schedule 5.16 lists all Contracts of Xxxxxxx pursuant to which
Indebtedness of Xxxxxxx may be incurred by Xxxxxxx subsequent to June 30, 2007 in the
Ordinary Course of Business (“Additional Xxxxxxx Indebtedness” and “Additional
Xxxxxxx Indebtedness Contracts”).
“Initial Escrow Amount” means:
(i) an amount equal to 7.5% of the sum of the Closing Estimate of the Initial Proceeds
to Xxxxxxx Shareholders (such amount to be fixed and not subject to adjustment
notwithstanding any adjustment of the Closing Net Proceeds to Xxxxxxx Shareholders under
Section 2.3) and any Supplemental Hitachi Fleet Value and New Hitachi Fleet Proceeds
to which Xxxxxxx Shareholders may be entitled from time to time, to be deposited as of the
Funding Time, or in the case of any Supplemental Hitachi Fleet Value and New Hitachi Fleet
Proceeds when otherwise payable to Xxxxxxx Shareholders, with the Escrow Agent under the
Escrow Agreement (the foregoing being herein referred to as the “Closing Escrow
Amount”); plus
(ii) if the Hitachi Consent is obtained and the Supplemental Proceeds to Xxxxxxx
Shareholders is payable hereunder, an amount equal to 7.5% of the Supplemental Proceeds to
Xxxxxxx Shareholders (to the extent not included in the Closing Escrow Amount pursuant to
clause (i) above), to be deposited on the first anniversary of the Closing Date with
the Escrow Agent under the Escrow Agreement (the foregoing being herein referred to as the
“Supplemental Escrow Amount”).
“Initial Proceeds to Xxxxxxx Shareholders” means (i) an amount equal to the
product of 4.5 and the Non-Hitachi Adjusted EBITDA, less (ii) the Included Xxxxxxx
Indebtedness, plus (iii) the Hitachi Fleet Value and the Hitachi Fleet Premium,
plus (iv) any Supplemental Hitachi Fleet Value, less (v) the amount by which
the Closing Net Worth of Xxxxxxx is less than $25.0 million, less (vi) an amount
equal to $2.0 million less the dollar amount of any monetary benefit actually received by
Xxxxxxx in the unwinding of swap agreements prior to the Closing Date to which Xxxxxxx is a
party, less (vii) the
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amount by which the inventory of parts, accessories and attachments as of the Effective Time
is less than (other than as a result of sales in the Ordinary Course of Business) the amount
of the inventory of parts, accessories and attachments included in the balance sheet
included in the most recent Interim Financial Statements, such calculation pursuant to this
clause (vii) to be made promptly following the Closing and any payment by Xxxxxxx
Shareholders based thereon to be made immediately. Solely for purposes of example, the
Initial Proceeds to Xxxxxxx Shareholders is currently assumed (subject to confirmation by
the Parties in accordance with this Agreement) to be $55,589,818, assuming the Hitachi
Consent is not obtained; however, the foregoing does not include the receipt of the swap
benefit to which reference is made in clause (vi) above when received (which is
anticipated to be $139,140).
“Non-Hitachi Adjusted EBITDA” of Xxxxxxx means the earnings derived solely from
operations (excluding extraordinary transactions and excluding the Hitachi Adjusted EBITDA)
of Xxxxxxx for the 12-month period ending as of June 30, 2007, before any expense or charge
in respect of interest, Taxes based on income (but Taxes not based on income of Xxxxxxx
shall be included in the calculation of the Non-Hitachi Adjusted EBITDA), depreciation and
amortization, determined in a manner consistent with the 2006 Audited Financial Statements,
subject to the adjustments identified on Schedule B. In determining Hitachi Adjusted
EBITDA and non-Hitachi Adjusted EBITDA, all costs, expenses and deductions of Xxxxxxx which
are not clearly related to or identified with earnings derived from the sale and leasing of
vehicles and equipment manufactured by Hitachi or non-Hitachi vendors shall be allocated
with respect to earnings derived from Hitachi and non-Hitachi vendors pro rata based on the
sales and revenue derived from such sales and leasing.
“Third Party Payments” means the sum of and includes (i) the cost of settlement
of Xxxxxxx Equity Equivalents, (ii) an amount equal to Xxxxxxx Shareholders Expenses net of
the Xxxxxxx Shareholders Expense Allowance, to the extent such expenses are not paid prior
to the Closing, (iii) any Bonus-Severance-Termination Liabilities, (iv) the cost to unwind
swap agreements to which Xxxxxxx is a party, (v) prepayment costs and expenses under Xxxxxxx
Indebtedness, (vi) costs and expenses payable under any Contracts of Xxxxxxx as a result of
or based upon the Transaction (including any consent fee), (vii) the Identified
Environmental Remediation Costs, (viii) the fees and expenses of Special Counsel, (ix)
Affiliate Obligations, excluding Liabilities accrued in the Ordinary Course of Business
under the Continuing Affiliate Agreements identified on Disclosure Schedule 5.20,
but including Liabilities incurred under such Continuing Affiliate Agreements outside the
Ordinary Course of Business on or prior to the Closing Date and including Liabilities based
on or arising out of any breach by Xxxxxxx on or prior to the Closing Date of such
Continuing Affiliate Agreements, (x) payments required pursuant to any payoff letter and
Lien release commitment obtained pursuant to Section 4.2(b)(iii)(N), and (xi) withholding
Taxes payable by Xxxxxxx on any Bonus-Severance-Termination Liabilities.
* * *
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(b) The following definitions contained in Schedule A to the Agreement and Plan of
Merger are hereby amended and restated as follows:
* * *
“Xxxxxxx Indebtedness” means (without duplication) all (i)
indebtedness of Xxxxxxx for money borrowed from others,
reimbursement obligations of Xxxxxxx with respect to letters
of credit, and overdraws in respect of facilities or
agreements for borrowed money (including the amount of any
negative cash), excluding notes evidencing payables under
floor plan financings, unless such notes are classified as
Xxxxxxx Indebtedness under clause (vi) below, (ii)
Liabilities of Xxxxxxx evidenced by notes, bonds, debentures
or similar instruments (excluding notes evidencing payables
under floor plan financings, unless such notes are classified
as Xxxxxxx Indebtedness under clause (vi) below), (iii)
indebtedness of the type described in clauses (i) and (ii)
above guaranteed in any manner by Xxxxxxx, (iv) all
indebtedness of the type described in clauses (i), (ii) and
(iii) above secured by any Lien upon property owned by
Xxxxxxx, even though Xxxxxxx has not in any manner become
liable for the payment of such indebtedness, provided that
such amount included in Xxxxxxx Indebtedness shall not exceed
the fair market value of such property as of the date of such
determination if Xxxxxxx has not in any manner become liable
for the payment of such indebtedness, (v) all capitalized
lease obligations of Xxxxxxx, (vi) payables of Xxxxxxx
(whether pursuant to floor plan financings, on open account
or otherwise and whether or not evidenced by notes) on which
interest was accruing or payable as of June 30, 2007, and
(vii) all interest expense accrued but unpaid, and all
prepayment premiums and penalties, on or relating to any of
such indebtedness; provided, however, that Xxxxxxx
Indebtedness shall not include any accounts payable (except
as provided in clause (vi) above) and other similar current
obligations of Xxxxxxx incurred in the Ordinary Course of
Business, but Xxxxxxx Indebtedness shall include the current
portion of any Xxxxxxx Indebtedness described in the
preceding clauses (i) through (vii). The Parties have no
reason currently to believe that the list of floor plan
financing notes on Schedule E-2 is Xxxxxxx Indebtedness for
purposes of clause (vi) of the preceding sentence; however,
the inclusion or exclusion of such floor plan financing notes
on Schedule E-2 shall not be determinative of whether such
floor plan financing notes are classifiable as Xxxxxxx
Indebtedness under clause (vi) of the preceding sentence.
“Xxxxxxx Shareholders Expenses” means all expenses and
charges incurred by Xxxxxxx Shareholders or Xxxxxxx in
connection with the negotiation, execution and delivery of
this Agreement and the other Transaction Documents and the
consummation of the Transaction which are chargeable or
invoiced to, or which may be Liabilities of, Xxxxxxx but
which have not been paid by Xxxxxxx Shareholders on or prior
to the Closing (including (i) the fees and expenses described
in Sections 5.23 and 6.4, and (ii) any aggregate premiums
payable by Xxxxxxx in excess of $18,000 for any insurance
obtained by Xxxxxxx pursuant to Section 8.13).
“Financing” means financing or lending arrangements by H&E in
a net amount sufficient to fund its obligations as of the
Funding Time under Section 2.2.
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“Hitachi Agreements” means and includes each and all of the
following (as amended and in effect on the date of this
Agreement): (i) the Dealer Agreement dated September 1, 1995
by and between X.X. Xxxxxxx, Inc. and Hitachi Construction
Machinery (America) Corporation; (ii) the Security Agreement
dated September 1, 1995 by and between X.X. Xxxxxxx, Inc. and
Hitachi Construction Machinery (America) Corporation; (iii)
the Authorized Construction Dealer Agreement dated November
13, 2001 by and between X.X. Xxxxxxx, Inc. and Hitachi
Construction Machinery (America) Corporation; (iv) the
Security Agreement dated November 13, 2001 by and between
X.X. Xxxxxxx, Inc. and Hitachi Construction Machinery
(America) Corporation; (v) the Dealer Security Agreement for
Hitachi or Euclid Equipment dated May 7, 2002 by and between
X.X. Xxxxxxx, Inc. and Xxxx Deere Construction & Forestry
Company; (vi) the Hitachi Plan for Retail and Lease Financing
dated July 10, 2002 by and between X.X. Xxxxxxx, Inc. and
Xxxx Deere Construction & Forestry Company and Deere Credit,
Inc.; (vii) the Floorplan and Security Agreement dated
September 19, 2002 by and between X.X. Xxxxxxx, Inc. and
Hitachi Credit America Corp.; and (viii) the Authorized
Hitachi Dealer Agreement dated June 20, 2003 by and between
X.X. Acquisition, Inc. and Xxxx Deere Construction & Forestry
Company.
* * *
(c) The definition of “Reedrill and Xxxxxxx Accounts Receivables” contained in
Schedule A to the Agreement and Plan of Merger is hereby deleted in its entirety.
(d) The definition of “Purchase Price” contained in Schedule A to the Agreement and Plan of
Merger is hereby deleted in its entirety. The first sentence of Section 8.10(b) of the Agreement
and Plan of Merger is hereby amended and restated as follows:
* * *
In connection with the Elections, no later than 90 days after the Closing Date, Xxxxxxx
Shareholders and H&E shall act together in good faith to (i) determine and agree upon the
amount of the “adjusted grossed-up basis” and “aggregate deemed sales price” of the assets
of Xxxxxxx (within the meaning of Treas. Reg. § 1.338(h)(10)-1(d)(2),(3)), which “adjusted
grossed-up basis” and “aggregate deemed sales price” shall be determined in a manner
consistent with the Closing Estimates.
* * *
All other references to “Purchase Price” in the Agreement and Plan of Merger are hereby deleted.
* * *
(e) The following definition is hereby added to Schedule A to the Agreement and Plan
of Merger:
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* * *
“Amended and Restated Disclosure Schedules” means the Amended
and Restated Disclosure Schedules delivered on the Closing
Date by Xxxxxxx Shareholders to H&E.
* * *
3. Amendment of Specific Provisions.
(a) The first clause of Section 2.2(b) of the Agreement and Plan of Merger is hereby amended
and restated as follows:
* * *
(b) Not later than 12:00 noon (Eastern Standard Time) on September 4, 2007, but subject
to the provisions of Sections 4.2 (including Section 4.2(a)(iii)):
* * *
(b) Section 2.2 (e) of the Agreement and Plan of Merger is hereby amended and restated as
follows:
* * *
(e) Xxxxxxx Shareholders Representative, as the Exchange Agent, shall be solely
responsible for the determination of the holders of the Xxxxxxx Equity Equivalents and the
amount of Xxxxxxx Equity Equivalents owned by such holders. In the event that any Person
shall claim to be the holder of Xxxxxxx Equity Equivalents, none of H&E, HE-JWB or Xxxxxxx
shall have any Liability to such Person (whether for the payment of any Merger Consideration
per Xxxxxxx Share or otherwise), and such Person shall be entitled solely to assert claims,
if any otherwise exist, against Xxxxxxx Shareholders Representative for any payment to which
such Person may be entitled in respect of such Person’s Xxxxxxx Equity Equivalents.
* * *
(c) Section 2.3 (c) of the Agreement and Plan of Merger is hereby amended and restated as
follows:
* * *
(c) In the event that the Post-Closing Calculations indicate that an aggregate net
adjustment to the items included in the Closing Estimates is warranted, then an additional
payment by H&E to Xxxxxxx Shareholders Representative, or a repayment
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by Xxxxxxx Shareholders Representative to H&E out of the Closing Net Proceeds to Xxxxxxx
Shareholders delivered by H&E to Xxxxxxx Shareholders as of the Funding Time (or failing any
such payment being made, a payment from the Escrow (as defined in the Escrow Agreement),
shall be promptly made. In computing such adjustment, (i) any positive Short Period Tax
Adjustment shall be treated as an amount due by H&E to Xxxxxxx Shareholders Representative,
and (ii) any negative Short Period Tax Adjustment shall be treated as a repayment due from
Shareholders Representative to H&E out of the Closing Net Proceeds to Xxxxxxx Shareholders,
such payment to be made promptly from the Reserve Account.
* * *
(d) Section 3.2 of the Agreement and Plan of Merger is hereby amended and restated as follows:
* * *
Section 3.2. Effective Time. On September 4, 2007,
HE-JWB and Xxxxxxx shall cause articles of
merger, complying with the requirements of
the Virginia Act and in form and substance
satisfactory to H&E, Xxxxxxx and Xxxxxxx
Shareholders Representative (the “Articles
of Merger”), to be filed with the State
Corporation Commission of the Commonwealth
of Virginia. The Articles of Merger shall
state that the Merger shall be effective as
of 12:01 AM (Eastern Standard Time) on
September 1, 2007 (the “Effective Time”).
* * *
(e) Section 4.1 of the Agreement and Plan of Merger is hereby amended and restated as follows:
* * *
Section 4.1. Closing Date and Place. The closing of the Transaction (the
“Closing”) shall take place at the offices of Dechert LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx, as of midnight (Eastern Standard Time) on August 31, 2007, provided that the
conditions set forth in Section 4.2 have been satisfied or waived by the Party for
whose benefit such conditions exist. The date of the Closing is herein called the
“Closing Date”. From and after midnight (Eastern Standard Time) on August 31, 2007,
the business and operations of Xxxxxxx shall be solely for the benefit of H&E, and the
current board of directors and Xxxxxxx Shareholders shall not exercise any authority over
the business, operations or assets of Xxxxxxx except as otherwise directed by H&E and except
to effect the filing of the Articles of Merger pursuant to Section 3.2.
* * *
9
(f) Section 6.6 of the Agreement and Plan of Merger is hereby amended and restated as follows:
* * *
Section 6.6. Title to Shares. Immediately prior to the
Effective Time, the Xxxxxxx Equity
Equivalents set forth on Disclosure
Schedule 5.5 will be owned of record and
beneficially by the Xxxxxxx Shareholder
free and clear of all Liens and
restrictions on transfer other than under
applicable securities Laws, except for
Liens described on Disclosure Schedule 6.6
which will be satisfied in full by Xxxxxxx
Shareholders as of the Closing Date.
* * *
(g) Section 4.2(b)(iv) of the Agreement and Plan of Merger is hereby amended and restated as
follows:
* * *
(iv) Affiliate Transactions. Each and every Affiliate Agreement and Affiliate
Obligation, other than the Continuing Affiliate Agreements, shall have been canceled and
released as of the Closing Date. The Lease Agreement dated December 1, 2005 between
Financial Acquisitions, LLC and X.X. Xxxxxxx, Incorporated (the “Warrenton Lease”),
the Lease dated September 29, 2004 between Financial Investments, LLC and X.X. Xxxxxxx, Inc.
(the “Columbia Lease”), and the Lease dated October 26, 2006 between Financial
Acquisitions, LLC and X.X. Xxxxxxx, Inc. (the “Greenville Lease”), as the foregoing
are amended and in effect on the date hereof, shall have been modified as to the economic
terms thereof in an manner satisfactory to H&E based on a market valuation of the Warrenton
Lease, the Columbia Lease and the Greenville Lease and the location of the applicable
premises, such valuation to be conducted by an appraiser or valuation firm satisfactory to
H&E.
* * *
(h) Section 10.2(a)(iii)(G) of the Agreement and Plan of Merger is hereby amended and restated
as follows:
* * *
(G) (1) any Liability of Xxxxxxx arising as of or prior to the Effective Time to
indemnify any director, officer or other Person in connection with their service to,
employment by or retention by Xxxxxxx or Xxxxxxx Shareholders; and (2) with respect to any
insurance obtained by Xxxxxxx pursuant to Section 8.13, any deductible or reimbursement
amount or obligation payable by or of Xxxxxxx under any such insurance, and any aggregate
premiums payable by Xxxxxxx in excess of $18,000, notwithstanding
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that H&E shall not have objected to such insurance as not in compliance with the Permitted
D&O Insurance requirements of Section 8.13;
* * *
(i) Section 10.2(a)(iii)(M) of the Agreement and Plan of Merger is hereby amended and restated
as follows:
* * *
(M) any Liability of Xxxxxxx relating to (1) Xxxxxxx Xxxxxx’x accident and ear injury
on March 7, 2005 (referred to as the “South Carolina Employment Matter” in Item 3 of
Disclosure Schedule 5.13), (2) the traffic accident on October 10, 2005 in
Greensboro, North Carolina involving a Xxxx Bark Blower described in Item 3 of
Disclosure Schedule 5.18, (3) the “Xxxxxx Employment Matter” referred to in Item 2
of Disclosure Schedule 5.13, and (4) the “South Carolina Employment Matter” referred
to in Item 3 of Disclosure Schedule 5.13, and the “Xxxxxx Industrial Matter” and the
“Berkley Matter” referred to in Items 7 and 8 of Disclosure Schedule 5.7.
* * *
(j) The Agreement and Plan of Merger is hereby amended to add the following Section 5.26 and
Schedule F hereto:
* * *
Section 5.26. Certain Bonus-Severance-Termination Liabilities.
The employees identified on Schedule F shall be
entitled to receive payments in the amounts (less
applicable withholding taxes and other withholding
obligations) and at such times specified on
Schedule F, subject to the provisions of this
Section 5.26. The amount of such payments shall be
Third Party Payments and shall reduce the Closing
Net Proceeds to Xxxxxxx Shareholders regardless of
when paid or expected to be paid. However, to the
extent not paid in accordance with Schedule F, the
amount of such Third Party Payments which have
reduced the Closing Net Proceeds to Xxxxxxx
Shareholders shall be remitted by H&E Xxxxxxx to
Xxxxxxx Shareholders Representative promptly
following any determination that the specified
employees are not entitled to receive the payments.
Neither the provisions of this Section 5.26 nor any
intention to make the payments specified on
Schedule F to any employee shall impose upon
Xxxxxxx or H&E any obligation to continue the
employment of any such employee or establish any
other employment obligation of Xxxxxxx or H&E with
respect to such employee, and H&E and Xxxxxxx shall
be entitled to rely upon the directions of Xxxxxxx
Shareholders Representative as to whether any of
the specified employees are entitled to receive the
payments.
* * *
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4. Any Consent obtained under the Floorplan and Security Agreement dated September 19, 2002 by
and between X.X. Xxxxxxx, Inc. and Hitachi Credit America Corp., including any intercreditor
agreement entered into by Hitachi Credit America Corp. with respect thereto, shall not constitute a
satisfactory Hitachi Consent for any purpose under the Agreement and Plan of Merger.
5. Amendment of Schedules and Exhibits.
(a) Schedule D (“Identified Environmental Remediation”) to the Agreement and
Plan of Merger is hereby amended and restated in the manner set forth on Schedule D hereto.
(b) Exhibit A (“Escrow Agreement”) to the Agreement and Plan of Merger is
hereby amended and restated in the manner set forth on Exhibit A hereto.
(c) Exhibit B (“Amended and Restated Articles of Incorporation”) to the
Agreement and Plan of Merger is hereby amended and restated in the manner set forth on
Exhibit B hereto.
6. Transaction Document. This Amendment shall constitute a Transaction Document.
[Signature Pages Follow]
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In witness whereof, the Parties have caused this Amendment to
be duly executed as of the day and year first above written.
| H&E Equipment Services, Inc. | HE-JWB Acquisition, Inc. | |||||||
By:
|
/s/ Xxxx Xxxxxxxx | By: | /s/ Xxxx Xxxxxxxx | |||||
| Xxxx Xxxxxxxx | Xxxx Xxxxxxxx | |||||||
| President | President | |||||||
| X.X. Xxxxxxx, Incorporated | ||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||||||
| Xxxxxxx X. Xxxxxx | ||||||||
| President | ||||||||
Xxxxxxx Shareholders
| /s/ Xxxxxxx X. Xxxxxx | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Xxxxxxx X. Xxxxxx | Xxxxxxx X. Xxxxxx | |||||||
| /s/ Xxxxx X. Xxxxx III | /s/ Xxxxxxx X. Xxxx | |||||||
| Xxxxx X. Xxxxx III | Xxxxxxx X. Xxxx | |||||||
| /s/ Xxxxxx X. Xxxxxxxx | /s/ Xxxxx X. Xxxx | |||||||
| Xxxxxx X. Xxxxxxxx | Xxxxx X. Xxxx | |||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||||
| Xxxxxxx X. Xxxxxx | ||||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||||
| Xxxxxxx X. Xxxxxx, | ||||||||
| in his capacity as Xxxxxxx Shareholders Representative and Exchange Agent | ||||||||
Amendment No. 1 to Agreement and Plan of Merger dated as of August 31, 2007
Schedule D to Amendment No. 1 to Agreement and Plan of Merger
Identified Environmental Remediation
Attached
Schedule F to Amendment No. 1 to Agreement and Plan of Merger
Certain Bonus-Severance-Termination Liabilities
Attached
Exhibit A to Amendment No. 1 to Agreement and Plan of Merger
Escrow Agreement;
Attached
Exhibit B to Amendment No. 1 to Agreement and Plan of Merger
Amended and Restated Articles of Incorporation
Attached
